Licensing and Appeals Committee Minutes

Date:
Thursday, 21st January, 2010
Time:
7.30pm
Place:
Committee Room 1, Council Offices, Gernon Road, Letchworth Garden City
 
 

Attendance Details

Present:
Councillor M.R.M. Muir (Chairman), D.J. Barnard, Councillor Clare Body, Councillor Paul Clark, Councillor Marilyn Kirkland and Councillor M.E. Weeks.
In attendance:
Senior Licensing & Enforcement Officer, Animal Welfare Officer, Solicitor and Senior Committee & Members Services Officer.
Also Present:
12 Members of the public.
Item Description/Decision
PART I
9 ELECTION OF CHAIRMAN
RESOLVED: That Councillor M.R.M. Muir be elected Chairman of the meeting.
10 APOLOGIES FOR ABSENCE
Apologies for absence were received from Councillors P.C.W. Burt (Chairman), Mrs A.G. Ashley, A. Bardett and Lorna Kercher.
11 MINUTES
RESOLVED: That the Minutes of the Committee held on 5 November 2009 be approved as a true record of the proceedings and signed by the Chairman.
12 NOTIFICATION OF OTHER BUSINESS
There was no notification of other business.
13 CHAIRMAN'S ANNOUNCEMENTS
(1) The Chairman reminded Members that any declarations of interest in respect of any business set out in the agenda should be declared as either a prejudicial or personal interest, and that they required to notify the Chairman of the nature of any interest declared at the commencement of the relevant item on the agenda. Members declaring a prejudicial interest should leave the room and not seek to influence the decision during that particular item;

(2) The Chairman pointed out that the time limit for the members of the public to address the Committee would be for a maximum of 5 minutes each. The Chairman advised that, once the speakers had all finished their presentations, there would be no further opportunity for them to speak on the matter.

14 PUBLIC PARTICIPATION
The Chairman advised that he proposed to vary the order of business on the agenda, so that the Senior Licensing Officer would introduce Item 6 on the agenda - Animal Policy 2010, after which the members of the public who had registered to speak at the meeting would be invited to each address the Committee with their views on the Policy (Item 5 - Public Participation), following which the Senior Licensing Officer would respond to any of the points raised, and then the Committee would debate the item.
15 ANIMAL LICENSING POLICY 2010
[Prior to the commencement of this item, Councillor D.J. Barnard declared a personal interest in the matter, as he had in the past used one of the Animal Boarding Establishments for his cats.

Councillors Marilyn Kirkland and M.E. Weeks declared personal interests in the matter, as they were both acquainted with one of the Animal Boarding Establishment owners present at the meeting.]

The Senior Licensing and Enforcement Officer presented a report seeking the Committee’s endorsement of the Council’s proposed Animal Licensing Policy 2010, prior to consideration of the Policy by Cabinet on 26 January 2010. The following appendix was submitted with the report:

Appendix A - Final proposed Animal Licensing Policy, incorporating amendments resulting from the public consultation exercise, and further consultation with experts.

The Senior Licensing and Enforcement Officer reminded the Committee that, at its previous meeting held on 5 November 2009, it had been addressed by existing licence holders and experts from the animal world, in particular in the field of reptiles and pet shops. The Committee had deferred the policy for further review and fine-tuning by the officers, in conjunction with the experts.

The Committee was informed that Officers had met on 17 November 2009 to discuss the way forward, and a letter was sent to existing licence holders advising them of the next steps in the process. It was decided to invite the following experts to a further meeting on 4 December 2009:

Mrs J Nunn Pet Care Trust
Mr C Newman REPTA
Mr P Eymor Country Boarding Kennels & Cattery
Mr B Huffer Cosy Cats Cattery
Mr C Woodard Animal Services Manager, Stevenage Borough Council.

At the meeting on 4 December 2009, the Policy was agreed in principle, with the proviso that further fine-tuning of the Appendices, in particular in relation to Boarding Establishments, may be needed.

The Committee was advised that a Trade Forum would be established, covering all aspects of animal licensing, with a remit to keep the Appendices under review. Officers were confident that the Policy would allow all existing licence holders to continue trading, with a flexibility for the Licensing and Enforcement Manager to allow minor departures from Policy where the licensing principles were still achieved. Any problems that were identified by the Trade Forum, however, could be considered by the Portfolio Holder for Housing and Environmental Health, with a view to making minor adjustments to the Policy if deemed appropriate.

The Senior Licensing and Enforcement Officer stated that in the report considered by the Committee on 5 November 2009, reference was made to the ‘five freedoms’ contained within the Animal Welfare Act 2006. The ‘five freedoms’, however, were identified by the Farm Animal Welfare Council prior to the Animal Welfare Act 2006. The Animal Welfare Act 2006 referred to ‘five needs’, as follows:

• The need for a suitable environment;
(providing an appropriate environment, including shelter and a comfortable resting area)
• The need for a suitable diet;
(by ready access, where appropriate, to fresh water and a diet to maintain full health)
• The need to be able to exhibit normal behaviour patterns;
(by providing sufficient space, proper facilities and the company of an animal of its own kind, where appropriate)
• Any need to be housed with, or apart from, other animals; and
(by providing the company of an animal of its own kind, where appropriate)
• The need to be protected from pain, suffering, injury and disease.
(by prevention or rapid diagnosis and treatment, and ensuring conditions and treatment which avoid mental suffering).

The Committee was aware that it needed to determine the outstanding issues relating to animal boarding establishments, particularly potential exemptions for existing owners from the size requirements required under the proposed new policy.

The Senior Licensing and Enforcement Officer commented that various options had been considered regarding size requirements, as detailed in Paragraphs 11.1.1 to 11.1.5 of the report, but that it was recommended that all existing boarding establishment licence holders had an exemption from the new Policy size requirements whilst the current licence holders remained as licence holder, subject to certain conditions (Option 11.1.3). This option was not without the risk of challenge from potential new operators, who would have to meet different standards (which may have cost implications) to the existing licence holders. A new operator purchasing an existing establishment would do so in the knowledge that they would need to make changes to the premises. Whilst existing licence holders would argue this may affect the price they achieved at sale, they had the option of making alterations prior to selling.

The Senior Licensing and Enforcement Officer concluded by stating that it was not the intention of the policy to deny the owners the ability to trade from their existing premises. He referred to Paragraph 9.2 of the policy, which allowed for departures from the policy, based on the individual circumstances of each establishment.

Public Participation:

(i) Ms Janet Nunn (on behalf of the Pet Care Trust)

Ms Nunn reminded the Committee that she was the Chief executive of the Pet Care Trust, a body concerned with the promotion of responsible pet ownership.

Ms Nunn was pleased that the Council had engaged with stakeholders and had improved the policy with regard to pet retailing issues, but she still had the following concerns:

• Paragraphs 6.1 and 6.2 of the Officer’s report - Financial and Risk Implications - no reference was made here to a risk-based approach for inspection of premises, and the financial consequences for many of the animal boarding establishments could be significant should a rigid approach be adopted to the policy requiring them to upgrade to the required standards;
• Paragraph 5.1.3 of the Policy - Licensing Requirements - the words “or a suitably qualified and nationally recognised expert” should be replaced with “or a suitably qualified or nationally recognised expert”;
• Appendix C - Pet Shop Conditions - Paragraph 5.2 - it would be onerous on pet shops to be expected to state the scientific name of each species in the licensed premises, when such names meant very little to the majority of pet owners;
• Appendix C - Section 15 - Reptiles - this section should be removed from the policy;
• Appendix A1 - Dog Boarding Establishments - it was questionable whether these conditions were in the best interests of the animals.

Ms Nunn concluded by requesting the Committee not to adopt the policy without reference being made to the risk-based approach and the removal of Section 15.

(ii) Mr Barry Huffer (Animal Boarding Establishment Owner)

Mr Huffer explained that he was representing 6 animal boarding establishments, who had formed themselves into a group following the issue of the public consultation on the proposed policy.

Mr Huffer stated that he had left the experts’ meeting on 4 December 2009 in a mood of optimism, but that on reading the revised policy he still considered that it would be detrimental to the long-term future of catteries in North Hertfordshire. He had the following concerns:

• Whilst the policy appeared to be self-evident in its interpretation to existing officers at the Council, he was not sure whether the policy was robust enough, in its interpretive elements, should the officers at the Council change;
• The policy was highly dependent on the awareness of officers, and he felt that Clause 9.2 (in the Departure from Policy section) should be far more prominent;
• Details of the Licensing conditions should be reviewed by further meetings of the proposed Trade Forum;
• The timetable for adoption appeared to be rushed - it was not a statutory policy, and seemed to be to meet the Council’s own targets;
• He had been promised the report and policy before Christmas 2009, but did not receive it until 31 December 2009 - when it appeared that only token changes had been made to the documentation;
• In respect of the preferred option for upgrading to the new standards, he felt that this would be unreasonable for most owners, and he quoted costs in the region of £30,000 - £70,000 for such works should they wish to sell on the business;
• The only substantive changes to the policy appeared to centre around the pet trade.

Mr Huffer requested that the policy be deferred, so that sufficient time could be given to refine the policy, particularly as there was no statutory timetable for adoption of the document.

(iii) Mr Chris Newman (Reptile and Exotic Pet Trade Association)

Mr Newman advised that he was a consultant to the Reptile and Exotic Pet Association, a position he had held for the past 5 years.

Mr Newman stated that he been unable to attend the experts’ meeting on 4 December 2009 due to ill health, but that he was keen to be involved with the proposed Trade Forum in its ongoing review of the policy. He made the following points in respect of Appendix C to the policy - Standard Conditions for Pet Shops:

• Paragraph 1.1 - the word “should” be replaced with “must”;
• Paragraph 5.2 - support for Ms Nunn’s comment that it would be onerous on pet shops to be expected to state the scientific name of each species in the licensed premises, when such names meant very little to the majority of pet owners;
• Paragraph 6.6 - the word “must” be replaced with should”;
• Paragraph 14.2 - the word “should” be replaced with “must”;
• Section 15 - Reptiles - support for Ms Nunn’s comment that this section should be removed, as it was covered in general terms by Paragraph 2.1 of Appendix C.

(iv) Statement from Mr Eymor (Animal Boarding Establishment Owner)

The Solicitor read out the following statement from Mr Eymor:

“Firstly, thank you for allowing my statement to be read out. Personal reasons prevent me from attending.

The current recession has sent a chill over many businesses and we need to look closely at what we can achieve in the next few years. Our turnover has reduced by 20% in the last two years so we are seeing a noticeable decline in people using our type of business. There are also new threats out there, which will no doubt impact on us, ie.

• Home boarding;
• Falling pet numbers, possibly due to recession;
• Unlicensed boarding premises;
• Home pet sitters.

All these factors have to be considered when looking to invest in the future and, quite frankly, the timing of the new policy could not have come at a worse time.

Unlike the Council we cannot keep raising our fees. To do so could result in more lost revenue and financial hardship. I note the officers have put forward reasons for recommending the policy under 10.1. It states a reason is to ensure small businesses are not unduly burdened or put at financial risk as a result of implementing the new standards. I question how officers can make a statement like that when they are not privy to our, or any other business’, financial commitments. The current recession inevitably puts pressure on any business to cost out and plan carefully before making decisions on future changes. We need to see potential for growth and this could be 1 or 2 years away.

The guidelines have many good points, but some are difficult to meet and we just need some guarantees that the interpretation of the policy is going to be practical and sensible. Under 9.2 “Departure from Policy” am I correct in assuming this only refers to existing licence holders? If this is the case, is it not possible for this to cover new operators purchasing a new business? We should all know by now the guidelines are not a legal requirement, so I do question why the officers are so keen to rush this policy through now without taking into account the many issues raised during the consultation period.

In my previous statement I raised the matter regarding new owners being allowed time to make improvements on a case by case basis and to not be penalised by having to meet the new policy standards as from 1 April 2010. I suggested 5 years as a reasonable time period.

I note the option at 11.1.4 only allows 3 years. This is our preferred option, but 3 years is too short a timescale under the current financial situation and our original time period of 5 years would allow for more flexibility.

In 11.1.3 the last sentence suggests the existing licence holders would argue if they were to sell they would not achieve a good sale price because of the restrictions being imposed by this option. The final insult is we would be still have the option to make alterations prior to selling. This last sentence is not in keeping with the reasons for recommendations, I quote “existing small businesses are not unduly burdened or put at financial risk as a result of implementing the new standards”. The let out under this option as to size requirements is very reasonable, but there are other issues under the guidelines that need to be covered by 9.2 (“Departure from Policy”) and we do not appear to have any guarantees that discretion will be used. What would happen if there was a change of personnel at the Council and they were not prepared to be as flexible as the current incumbents?

I would argue that option 11.1.4 carries no greater risk to the Council to defend a challenge from new operators. I believe the Council will be able to defend any future challenge on the following grounds:

(a) The current operators would have faced financial hardship and lost revenue from their respective businesses in the event they were looking to sell;
(b) The current recession was likely to add to financial implications to make changes;
(c) Threats to existing licence holders from home sitters, home boarding and unlicensed premises must be considered when looking to upgrade;
(d) Further time therefore should be given to allow existing operators time to assess the implications and costs in making the changes on a case by case basis, and finally;
(e) Animal welfare could be put at risk in North Herts if businesses were to close due to the rigid implementation of the national standards.

The interpretation of the guidelines in the new policy, if adopted, in relation to boarding kennels and catteries could be a decision for Mrs Silverio (Licensing and Enforcement Manager). Most people at the meeting on 4 December 2009 would have liked Mrs Silverio to be present for the whole meeting. She made her apologies, but she had to leave for another meeting and could only give us 30 minutes of her time. This was disappointing, as this whole issue is very serious and I would have liked her to remain so she would have been more aware of our concerns. I do not believe the officers of the Council have properly considered the implications in relation to boarding kennels and catteries.

We have over 3,000 customers on our database and if we were to close or unable to sell as a result of this policy, then many of our customers will struggle to find alternative accommodation for their pets in North Herts District.

Finally, I would like to ask the Committee, having considered the points for and against the options being put forward, to either select 11.1.4 or to adopt 11.2. The latter would give all interested parties more time to work with the Council to bring about the changes in a realistic and mutually practical way without undue risk to their respective businesses or the Council. To adopt one of the other options could result in some businesses having to close in North Herts.”

Officer comment and debate

The Senior Licensing and Enforcement Officer responded to a number of the points raised by the speakers, as follows:

• In respect of the risk-based approach to inspections, this was provided for to at Paragraph 2.6.1 of the policy, in advance of the expected secondary legislation that would introduce such a regime. As regards Paragraphs 6.1 and 6.2 of the Officer’s report - Financial and Risk Implications, the Solicitor clarified that the intention of these paragraphs was to identify these implications for the Council, and not for third parties;
• He was prepared to accept the various minor wording changes referred to by the speakers with regard to Paragraph 5.1.3 of the policy and Paragraphs 1.1, 6.6 and 14.2 of Appendix C - Standard Conditions for Pet shops;
• With regard to Paragraph 5.2 of Appendix C, he was prepared to amend the policy so that, due their unique husbandry requirements, only the scientific names of reptiles, as opposed to all animals, should be required to be displayed in the shops. Paragraph 5.2 would now read "The licence will specify each taxa permitted to be kept for sale in the licensed premises, however, in the case of reptiles the licence will specify the scientific name of each permitted species";
• In relation to Section 15 of Appendix C - the standard conditions for reptiles - he stated that the policy was not endeavouring to be over-prescriptive regarding the keeping of reptiles, but rather the intention was to be certain that handlers of reptiles knew what they were doing. He suggested the following Informative, which could be added at the beginning of Section 15, on the basis that these conditions would be looked at in more detail at an early meeting of the proposed Trade Forum:

“Informative:
This section is not intended to in any way hinder the stocking of reptiles, but is designed to ensure that each particular species receives the specialist husbandry it needs. This does not detract in any way from the 'five needs' of the Animal Welfare Act that apply equally to all animals.”

The Senior Licensing and Enforcement Officer re-iterated his earlier comment that Paragraph 9.2 of the policy provided for officer discretion regarding the standards of existing animal boarding establishments, and he perceived that should the premises fail to meet the size standards by a matter of inches then this officer discretion would still apply to any new owners. He had cross-referenced this discretion in Paragraph 3.3.5(4) of the policy, and considered this to be sufficiently robust to ensure consistent decision-making should there be changes to the officers responsible for the policy.

In respect of the issued raised regarding the attendance of the Licensing and Enforcement Manager at the meeting on 4 December 2009, the Senior Licensing and Enforcement Officer advised that this had been unfortunate due to the fact that the other meeting had been called at short notice, but that he had fully briefed her on all of the issues discussed at the meeting. He commented that she was not present at the Committee meeting due to ill health.

The Senior Licensing and Enforcement Officer commented that he was disappointed that Mr Huffer and others had not felt fully engaged with the process. However, whilst the policy did not incorporate all of the changes proposed by the Trade, he felt that it was a useful starting point, which would not cause any of the establishments to cease trading, but which would form the basis for a continuing dialogue in respect of the detail by way of the proposed Trade Forum.

The Committee debated the report, and agreed the suggested changes to the policy accepted by the Senior Licensing and Enforcement Officer. The Committee also agreed that there should be Member involvement in the proposed Trade Forum.

As a general point, the Solicitor advised that decision-making needed to be consistent and transparent. In respect of the various options set out in paragraphs 11.1.1 to 11.1.5 of the report in respect of the time period in which existing establishments were required to be brought up to standard, the Solicitor explained that the further the Committee departed from 11.1.1, the less consistency there would be in the decision. Officers had recommended option 11.1.3 as the “middle ground”.

The Committee noted the Solicitor’s views, but considered that the quality of the existing accommodation was high, and many of the Licence Holders already met the required standards. The Committee acknowledged the risks of legal challenge outlined in the report, but on balance considered that option 11.1.4 in the report, but modified to allow for a period of five years, should be agreed, and the policy be amended to reflect the following:

“11.1.4 All existing boarding establishment licence holders have an exemption from the new Policy size requirements whilst the current licence holders remain as licence holder, subject to certain conditions. There is also a further five year period of exemption for any new licence holder to allow the existing licence holders to sell their businesses as going concerns. Again there is the risk of challenge to this approach, the risk being for a greater period of time (the extra 5 years) . Whilst it would allow the business to be sold as a going concern it would be very difficult to defend a challenge from a new operator being treated differently because they are setting up from scratch as opposed to buying an ongoing concern.”

Accordingly, it was

RESOLVED:

(1) That the proposed Animal Licensing Policy 2010, as attached at Appendix A to the report, incorporating the results of the additional consultation with the experts and the amendments made by the Committee, be supported;

(2) That representatives of the Licensing and Appeals Committee (one per Political Group) be invited to future meetings of the proposed Trade Forum, which should take place at least every six months or more frequently as required for the next two years, and then as necessary thereafter.

RECOMMENDED TO CABINET: That the proposed Animal Licensing Policy 2010, as attached at Appendix A to the report, and incorporating the amendments made by the Licensing and Appeals Committee, be adopted.

REASON FOR DECISION: To establish a Policy in relation to animal licensing, with appropriate local licence conditions, that will ensure the promotion of the ‘five needs’ introduced in the Animal Welfare Act 2006.
Published on Wednesday, 27th January, 2010
Start - 7.30pm
End - 9.25pm